The Supreme Court heard the case related to same-sex marriage on Thursday, April 27. Solicitor General (SG) Tushar Mehta opposed the petitioners’ claim to have the right to choose their sexual orientation during the hearing.
During the hearing, SG Mehta, who is representing the central government, raised a hypothetical situation in which someone challenges the provisions prohibiting incest five years from now.
He expressed concerns about the potential consequences of allowing unbridled personal autonomy in terms of sexual orientation. According to him, if such autonomy is permitted, someone may use it in the future to challenge the provisions prohibiting incest.
In this regard, SG Mehta gave an example of someone who may develop an attraction to a family member and claim autonomy to engage in such relationships in private.
He contended that if sexual orientation is considered a valid reason for autonomy, then the prohibition on incest could be challenged. SG Mehta emphasized that this hypothetical scenario highlights the need for caution and for examining the potential implications of permitting unbridled personal autonomy.
The petitioner argued that the right to choose a partner and the right to sexual orientation are fundamental rights under Article 21 of the Constitution.
The SG, however, argued that the right to choose a partner is not a fundamental right, but a statutory right under the Hindu Marriage Act, which does not apply to same-sex couples.
He said, “Please visualize a situation five years down the line. I am attracted to someone in the prohibited (degree of) relationship. Incest is not uncommon across the world, and it is prohibited.
Someone is attracted to their sister, claims autonomy, and does something in the private domain. Now cannot this (provisions against incest) be challenged saying, ‘How can this be prohibited’?”
Replying to SG Mehta, CJI clarified that petitioners have argued that sexual orientation is not “a matter of choice” but an “innate characteristic”.
CJI called the scenario presented by SG “far-fetched”. He added that sexual orientation could not be exercised in all aspects of the marriage.
What more?
Furthermore, “It cannot be argued that sexual orientation is so strong that incest be allowed,” CJI added. SG further talked about full-blood and half-blood relations.
He said two persons are related by full blood when they are descendants from a common ancestor by the same wife and half blood when common ancestor but have different wives.
Such provisions cannot happen in the case of homosexual couples. “Merely making man and woman as persons will completely make this provision redundant,” he said.
He questioned how divorce cases would be dealt with in such marriages, asking who would be deemed the wife and who would be deemed the husband. Further, He explained that under the Hindu Marriage Act, a husband has to provide maintenance pendente lite to his wife when she establishes that she has no means to maintain herself.
He argued that in a gay marriage, it would be unclear who would be designated as the wife for the purpose of providing maintenance.
The bench discussed the issue raised by SG Mehta, and Justice Narasimha was heard saying before muting the mic, “That will be an impossible thing to do”.
The judges likely understood the difficulties of applying traditional gender roles to same-sex marriages and the need for rethinking the legal framework around marital relations.
SG Mehta’s concerns highlight the challenges of adapting existing legal frameworks to new types of relationships.
Same-sex marriages, for example, present unique questions around the roles and responsibilities of partners, especially in cases where traditional gender roles do not apply.
SG Mehta’s issues highlight the need for courts and lawmakers to consider same-sex couple’s rights and develop suitable legal frameworks.
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